PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ REGINALD WILLIAMS, Plaintiff - Appellant,

v. UTAH DEPARTMENT OF CORRECTIONS; BRIAN ALLGAIER, Utah Dept of Correc tions; MATTHEW B. ANDERSON, Utah Dept of Corrections; CRAIG BALLS, Utah Dept of Corrections; ALFRED C. BIGELOW, Utah Dept of Corrections; LARRY BUSSIO, Utah Dept of Corrections; JO HN CAPELL, Dept of Corrections; BILLIE CASPER, Dept of Corrections; RICHARD K. ELLIS, Treasurer’s Office; PAUL GARDNER, Dept of Corrections; MIKE HADDON, Dept of Corrections; RAYMOND KNIGHT, Dept of Corrections; DOUG RICHINS; ROSELLE MILLER, Div of Purchasing; GARY SESSIONS, Dept of Corrections; HELEN SHREVE, Dept of Corrections; PAMELA SORENSEN, Dept of Corrections; RO BERT STRONG, Dept of Corrections; ST EVEN TURLEY, Dept of Corrections, Defendants - Appellees, and ZIONS FIRST NATIONAL BANK; ZIONS BANCORPORATION; A. SCOTT ANDERSON; DEREK LOUTENSOCK; JACK MAY; VIRGINIA SMITH, Zions No. 18-4058 FILED United States Court of Appeals Tenth Circuit 

### July 8, 2019
Elisabeth A. Shumaker Clerk of Court2 Bank, Defendants.

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:13-CV-00319-DN)

________________ _________________ Submitted on the briefs: * Wesley D. Felix, Deiss Law PC, Salt Lake City, Utah, for Plaint iff-Appellant. Joshua D. Davidson, A ssistant Utah Solicitor General, Salt Lake City, Utah, for Defendants-Appellees.

________________ _________________ Before McHUGH , BALDOCK , and KELLY , Circuit Judges.

________________ _________________ BALDOCK , Circuit Judge.

________________ _________________ Reginald Williams, an inmate at the Utah Department of Correcti ons (UDOC), appeals the judgment entered in favor of UDOC and numerous pris on officials on his claim that UDOC failed to pay interest on prison accounts in vi olation of the Takings Clause of the Fifth Amendment, a nd that prison officials retali ated against him for raising this claim. We exercise jurisd iction under 28 U.S.C. § 1291 an d affirm, albeit for reasons other than those stated by the district court, and remand with instructions to the district court to dismiss Mr. Williams’ claims without prejudice.

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument.3 I. BACKGROUND Believing that Utah state law re quires UDOC to pay interest on prison accounts, Mr. Williams investigated the rela tionship between UDOC and Zio ns First National Bank (Zions Bank). Based on his inves tigation, he concluded that Zi ons Bank had a contract with UDOC to hold prisoner funds in an account administered by UDOC, and that the interest earned on the funds wa s illegally retained by the bank , when it should have been paid to the prisone rs who owned the fu nds. Mr. Williams believ ed that, in response to this investigation, UDOC retalia ted against him by, among other things, seizing his legal papers and giving him a negativ e parole report, which resulted in the denial of parole. He claimed that he was a model pr isoner who was similarly situated to other prisoners who had been granted parole. Mr. Williams, then proceeding pro se, filed suit pursuant to 42 U.S.C. § 1983, against UDOC, numerous prison o fficials, Zions Bank, and severa l Zions Bank employees. He alleged takings a nd due-process constitutional v iolations for withholding interest on inmate funds, and re taliation in violation of the F irst Amendment for raising these issues. 1 After the district court a ppointed counsel for Mr. Williams, all defendants filed motions to dismiss. The dis trict court dismissed all cla ims except the retaliation claim, and dismissed all defendants except five prison official s. The remaining defendants then filed a motion for summary judgment on the reta liation claim, which the district court granted.

1 Mr. Williams also alleged vari ous conspiracies to commit antit rust violations, to conceal wrongdoing, and to ret aliate, but he has abandoned t he conspiracy claims.4 In their motion to dismiss, UDOC and the prison-official defend ants (collectively, the UDOC Defendants) asserted Ele venth Amendment immunity, clai ming that as an arm of the State of Utah, UDOC was immune from suit, and that the p rison personnel were similarly immune from suit for cla ims against them in their off icial capacities. Mr. Williams presented no argument regarding the Eleventh Amend ment, and the district court did not address Eleventh A mendment immunity in any of its rulings. On appeal, the UDOC Defendants renew their a rgument that they are immune f rom suit under the Eleventh Amendment.
II. DISCUSSION A. Eleventh Amendment Immunity The Eleventh Amendment states, “The Judicial power of the Unit ed States shall not be construed to extend to a ny suit in law o r equity, commen ced or prosecuted against one of the United States by Citiz ens of another State, or by Ci tizens or Subjects of any Foreign State.” U.S. Const. ame nd XI. The Eleventh Amendment bars suits in federal court against a nonconsenting stat e brought by the state’s own citizens. See Edelman v. Jordan , 415 U.S. 651, 662-63 (1974). T his immunity extends to arms o f the state and to state officials who are sued for damages in their official capa city. See Peterson v.
Martinez , 707 F.3d 1197, 1205 (10th Cir. 2013). “[O]nce effectively as serted[,] [Eleventh Amendment ] immunity constitutes a bar to the exercise of federal subject matter jurisdiction.” Fent v. Okla. Water Res. Bd. , 235 F.3d 553, 558-5 9 (10th Cir. 2000) (emphasis omitted).5 As noted above, the district c ourt did not rule on the UDOC Def endants’ motion to dismiss based on Ele venth Amendment imm unity. In general, “the better practice on issues raised below but not rule d on by the district court is t o leave the matter to the district court in the first instance.” Rife v. Okla. Dep’t of Pub. Safety , 854 F.3d 637, 653 (10th Cir. 2017) (brackets and in ternal quotation marks omitted ) (remanding issue to district court). But even though t he district court did not ru le on the Eleventh Amendment issue, it is a purely legal one that can be decided o n the record. See Manzanares v. Higdon , 575 F.3d 1135, 1146 n.10 (10t h Cir. 2009) (“Although the dist rict court did not reach this issue, i t is a purely legal determinat ion that was argued below and that we may decide on the reco rd.”). Moreover, we may consider Eleventh Amendment immunity sua sponte. See Colby v. Herrick , 849 F.3d 1273, 1278 (10th Cir. 2017) (addressing whether state offici als in their official capacitie s were entitled to Eleventh Amendment immunity even though t he district court did not rule on the question). Therefore, we consider whethe r the UDOC Defendants are entitled to Eleventh Amendment immunity and conclude that they are. See Ruiz v. McDonnell , 299 F.3d 1173, 1182 (10th Cir. 2002) (affirm ing dismissal of parties eve n though the district court did not address the ground for dismissal). On appeal, the UDOC De fendants again invoke Eleventh Amendment immunity and seek dismissal of the com plaint. Mr. Williams does not cha llenge UDOC’s position that it is an arm of the State of Utah. Rather, he argues that Eleventh Amendment immunity does not bar his claims.6 Mr. Williams also does not pursue cl aims against the prison-off icial defendants in their personal capacities. His ope ning brief consistently refe rs to “the Department,” see,
e.g. , Aplt. Opening Br. at 15, and in his reply brief, he confirms the term “UDOC” was “shorthand that included all thos e defendants acting on UDOC’s behalf,” Aplt. Reply Br. at 2 n.1. To the extent he argue s that his collective characte rization of the defendants is sufficient to sustain any p ersonal-capacity claims, see id. at 10, his argument is insufficient. He has not explaine d which of the prison-officia l defendants are liable for what improper conduct. Cf. Robbins v. Oklahoma , 519 F.3d 1242, 1249-50 (10th Cir. 2008) (explaining that in § 1983 cases, where the defendants ar e a “government agency and a number of government actor s sued in their individual capa cities[,] . . . the complaint [must] make clear exactly who is alleged to have done what to whom , to provide each individual with fai r notice as to the basis of the claims against him or her, as distinguished from collective a llegations against the state”). Accordingly, we consider whether Eleventh Ame ndment immunity bars Mr. Williams’ claims a gainst the UDOC and the prison-offici al defendants only in their official capac ities. Mr. Williams argues that the Eleve nth Amendment does not apply to Fifth Amendment takings c laims. He relies on Lucas v. South Carolina Coastal Council , 505 U.S. 1003 (1992), where the Supre me Court addressed a Fifth Ame ndment takings claim brought against the “newly create d South Carolina Coastal Counc il,” id. at 1008. But in that case, the Court was not asked to rule on the Eleventh Amen dment or whether the defendant-Council was an arm o f the state. To the extent Mr. W illiams relies on Lucas as permitting a Fifth Amendment taki ngs claim against all governme ntal agencies, including7 UDOC, that reliance is misplaced. Eleventh Amendment immunity does not apply to “counties and similar municipal corporations,” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 280 (1977), but it does apply to arms of the st ate, Peterson , 707 F.3d at 1205. Some of the circuits that have c onsidered whether a claim under the Fifth Amendment Takings Clause is barr ed by Eleventh Amendment immuni ty have held that it is barred, as long as a remedy is available in state court. See Hutto v. S.C. Ret. Sys. , 773 F.3d 536, 552 (4th Cir. 2014 ) (concluding “that the Elevent h Amendment bars Fifth Amendment taking claims against States in federal court when the State’s courts remain open to adjudicate such claims”); Jachetta v. United States , 653 F.3d 898, 909-10 (9th Cir. 2011) (holding the E leventh Amendm ent bars claims brought against the state in federal court under the federal Takings Clause, but state court s must be available to adjudicate such claims); DLX, Inc. v. Kentucky , 381 F.3d 511, 526 -28 (6th Cir. 2004) (holding Eleventh Amendment imm unity barred federal takings cla im; stating state court “would have had to hear t hat federal claim”), overruled on other grounds by San Remo Hotel, L.P. v. City & Cty. of San Francisco , 545 U.S. 323 (2005); see also John G. & Marie Stella Kenedy Mem’l Found. v. Mauro , 21 F.3d 667, 674 (5th Cir. 1994) (holding “Fifth Amendment inverse condemn ation claim brought directly ag ainst the State of Texas [was] barred by the Eleventh Amendment”); Robinson v. Ga. Dep’t of Transp. , 966 F.2d 637, 638, 640-41 (11t h Cir. 1992) (holdi ng Eleventh Am endment barred plaintiffs’ claim “for violation of the Fifth and Fourteenth Am endments for a taking of their property”); Garrett v. Illinois , 612 F.2d 1038, 1039-40 (7th Cir. 1980) (holding Fifth8 Amendment takings claim against t he state based on plaintiff’s inability to earn income while incarcerated was barred by the Elevent h Amendment). Because neither the parties nor the district court addressed wh ether Utah state courts would be availa ble to adjudicate Mr. Williams’ federal t akings claim, we directed the parties to brief the issue . The parties agree, and our ind ependent research confirms, that Mr. Williams’ takings claim may be brought in Utah state c ourt. See, e.g. , Bingham v. Roosevelt City Corp. , 2010 UT 37, ¶¶ 15-1 6, 235 P.3d 730, 735 (addressing Fifth Amendment takings claim); see also Utah Code Ann. § 63L-3-102(1) (recognizing a “Constitutional taking” as “a gov ernmental action that results in a taking of private property so that compensation to the owner of the property is r equired by: (a) the Fifth or Fourteenth Amendment of the Con stitution of the United States . . . .” (internal quotation marks omitted)). We recognize the Supreme Court’ s recent holding that a propert y owner may bring a federal suit claiming a Fifth Amendment taking without first bringing suit in state court.
See Knick v. Twp. of Scott , No. 17-647, 2019 WL 2552486, at *7, *13 (U.S. June 21, 2019). But Knick did not involve Eleventh Amendmen t immunity, which is the basi s of our holding in this case. Therefo re, we hold that the takings claim against the UDOC Defendants must be dismissed ba sed on Eleventh Amendment immuni ty, and we remand this claim to the district court with instructions to dismiss i t without prejudice. See Colby , 849 F.3d at 1278 (holding dismissal based on Eleventh Amendme nt immunity is without prejudice).9 B. Prospective Injunctive Relie f Against UDOC Executive Direct or Mr. Williams asserts that Eleventh Amendment immunity does not apply to his claim against defendant Haddon, E xecutive Director of UDOC, in his official capacity, because an exception exists for p rospective injunctive relief. “[U]nder Ex parte Young, 209 U.S. 123 . . . (1908), a plainti ff may bring suit against i ndividual state officers acting in their official capacities if th e complaint alleges an ongoin g violation of fe deral law and the plaintiff seeks prospective relief.” Muscogee (Creek) Nation v. Pruitt , 669 F.3d 1159, 1166 (10th Cir. 2012). “In determi ning whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a str aightforward inquiry into whether the complaint alleges an ongoing violation of federal l aw and seeks relief properly characterized as prospective.” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md. , 535 U.S. 635, 645 (2002) (bracket s and internal quotation marks omitted). Mr. Williams’ complaint sought t he following relief, which it c haracterized as “injunctive relief”: (1) Require Zions [Bank] to pay Pl aintiffs interest and investm ent income from ITFA [Inmate Trust Fund Account] funds; (2) Require an audit be performed on the ITFA to ensure integri ty and rectify any irregularities; (3) Extinguish Zions’ mon opoly of the ITFA and; (4) Remove retaliatory re port from Williams’ file; (5) Require [UDOC] to place the ITFA out for bid; [and] (6) Require [UDOC] to insure ITFA funds under [FDIC]. Aplt. App. at 45. The request for the prospective injunctive relief to pay intere st on inmate funds was directed to Zions Bank, whi ch is no longer a party to this case. See Williams’10 Stipulation to Dismissal of Zio ns Bank, No. 18-4058 (10th Cir. Aug. 24, 2018). The remaining requests for injunctiv e relief appear to seek relief from UDOC. The Ex parte Young exception, however, applies onl y to individual defendants. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 146 (1 993). Mr. Williams cites
Stewart v. Norwood , No. 16-3189-JAR-DJW, 2017 WL 4284971, at *6 (D. Kan. Sept. 27, 2017), where a federal district court liberally construed t he pro se complaint as seeking an order to en join a named prison official from an ongo ing violation of his federal rights. In contrast, Mr. W illiams’ complaint did not n ame any prison official to be enjoined from a future viola tion of his federal rights. Mr. Williams contends he brought a claim against Mr. Haddon for injunctive relief, independent of his c laims against the UDOC. 2 But the complaint alleges only that Mr. Haddon was a member of a civ il conspiracy that provided Mr. Williams with false and misleading information. See Aplt. App. at 33, 34, 35. Th erefore, the record does not support a claim for injunctiv e relief against Mr. Haddon.
C. Retaliation Finally, we address Mr. Williams’ retaliation claim, which is t he only remaining claim he raised on appeal. To th e extent he seeks monetary dam ages, this claim is barred

2 Mr. Williams also argues that d efendant Haddon is not entitled to qualified immunity. “The defense of qualif ied immunity is available only in suits against officials sued in their persona l capacities, not in suits again st officials sued in their official capacities.” Cox v. Glanz, 800 F.3d 1231, 1239 n.1 (1 0th Cir. 2015) (ellipsis and internal quotation marks omi tted). Because we have determi ned that Mr. Williams does not pursue any personal-capacity claims, we d o not address qualified immunity.11 by Eleventh Amendment immunity. See Colby , 849 F.3d at 1278 (holding Eleventh Amendment immunity bars offici al-capacity damages claims). Alt hough his complaint requested that the “retaliatory report” be removed from his fil e, Aplt. App. at 45, which could be construed as seeking prospective relief, he makes no s uch appellate argument. Consequently, we do not address it. See, e.g. , Talley v. Time, Inc. , 923 F.3d 878, 906 n.28 (10th Cir. 2019) (declining to address argument not raised on appeal). We affirm the judgment in favor of the UDO C Defendants on the retaliation claim and remand for the district court to indicate th at the dismissal is without pr ejudice.
III. CONCLUSION We affirm the judgment, but rema nd with instructions to the dis trict court to dismiss Mr. Williams’ claims aga inst the UDOC Defendants withou t prejudice.